1999 PLP (C (PLC(CS))

NOOR MUHAMMAD MAGSI (MEMBER)‑‑The appellant Muhammad Iftikhar, Aftab, Statistical Officer, Federal Bureau, of Statistic Islamabad is aggrieved by order dated 14‑9‑1998 whereby Move‑over Committee has not recommended his move‑over case from BPS‑17 to 18 as his annual confidential reports do not fulfill the requirements of allowing the move‑over from BPS‑17 to BPS‑18.

2. Learned counsel for the appellant argued that the appellant has long spotless and regular service in BPS‑17 coupled with his seniority position and he had become eligible for move‑over w.e.f. 1‑12‑1997 having completed requisite length, of service. The. meeting, of the move‑over Committee was held on 21‑8‑1998 and had considered the case of 94 officials including the appellant but the case of the appellant was deferred on account of four average reports. Learned counsel contended that refusal to grant of move70ver to the appellant only on ground of earning "average", A.C.Rs. is ill‑founded and illegal, as average remarks are always considered as generally good for the purpose of grant of move‑over. In support, he has relied upon the judgments of the Hon'ble Supreme Court as: PLD 1992 SC 144; 1994 SCMR 544; 1997 PLC (C.S.) 931 and; 1995 PLC (C.S.) 39‑‑‑(Service Tribunal Punjab)

3. From the respondents side learned standing counsel argued that since the appellant did not fulfill the criteria laid down by the Finance Division for the grant of move‑over, therefore, he was not eligible and was trot granted move over from B‑17 to B‑

18. He ‑referred to the Finance Division's (Regulations Wing)'s O.M., dated 7th February, 1991 whereby "For 'move‑over from B‑17 to B‑18 and B‑18 to B‑19, at least two good reports without any adverse entry during the last five years inclusive of ‑the year of move‑over. " is the requirement, which the appellant did not fulfill, as he has earned four average reports and only one good report. In these circumstances, the appellant was not granted move‑over from B‑17 to B‑18. 4 We have heard the appellant and perused the relevant rules and judgments referred to by learned counsel for the parties. CRITERIA FOR MOVE‑OVER: "An employee must fulfil the following requirements for move‑over to pay‑scales 17,18 19 and 20, as the case may be: ‑ (i) He should be a regular member of the service, cadre or post concerned and. should have completed the following length of service to a post in the pay scale in which he is to move‑over: B‑18 5 years B‑19 12 years B‑20 17 years (ii) His confidential reports for the last five years in the‑ existing post/pay‑scale are free from adverse remarks and‑ (a) ace average to good in the case of move‑over to scales 17 and 18; (b) are' generally good in the case of move‑over 'to scale 19 and at least good or above for move‑over to BPS‑20. (iii) No penalty under the relevant rules was imposed on him during the last five years. (iv) He has not reached his present pay scale by move‑over. Further amendment was made, as per Finance Division's O.M. dated 7‑2‑1991, relevant portion is reproduced below: ‑ "For move‑over from B‑17 to B‑18 and B‑18 to B‑19, at least two good reports without any adverse entry during the last five years, inclusive of the year of move‑over. " ???????????

5. Admittedly, the appellant fulfils all the above requirements except there is only hindrance of his earning "average reports". It has been held in a number of cases, that "average remarks" are not treated as adverse, and thus, do not cause hindrance for grant of move‑over. It is admitted fact that 'the appellant was never communicated these average reports, thus these reports cannot be treated as adverse. Honourable Supreme Court has laid down a dictum in Muhammad Anwar's case (PLD 1992 SC 144) that if there was no adverse report against civil servant and he had got average reports they would have to be treated as generally good for purpose of move‑over. It has further been held in the above cited case: ' "Report of average cannot be treated as adverse unless specifically so treated and they conveyed to the civil servant ' as ‑ an adverse report. The prefixing of the word 'generally' itself conveys that in case 'generally good' the word 'good' would not be taken into its technical extreme. It would not be expected in case of 'generally good' that the civil servant should get formally 'good' reports. If there is no adverse report against him and he gets 'average reports' they would have to be treated as 'generally good' for purpose of move‑over. Because a report 'average' cannot be treated as adverse unless specifically so treated and then conveyed to the civil servant as an adverse report. Notwithstanding the grading regarding the average in other aspects of civil service, in the context of move‑over expression 'generally good' would, amongst others, apply to mixed sort of reports ??????????? containing good and average reports. Where there was no adverse report and civil servant had earned also three average reports, the effect of all these reports was 'generally good' reports." This dictum has been further followed in an other case reported as 1997 PLC (C.S.) 931; 1994 SCMR 544 by the Hon'ble Supreme Court and in 1995 PLC (C.S.) 39 by the Service Tribunal, Punjab:

6. Learned counsel for the appellant was asked to produce any such instance wherein a civil servant with four average reports, has been allowed move‑over, he has referred to reported case decided by the Hon'ble Supreme Court in 1994 SCMR 544 wherein civil servant was denied move‑over to? BS‑18 on the ground that having only earned "average" reports in the preceding five years was not entitled to grant of move‑over. The Hon'ble Supreme Court has refused to grant leave in that case and upheld the decision of the Service Tribunal following the dictum laid down in the reported case PLD 1992 SC 144, as referred to above. Another such instance has been ' quoted by the Hon'ble Supreme Court in the PLD 1992 SC 144 that "leave to appeal was granted to examine the effect of decision of the Tribunal in the 'case of Mumtaz Ali Khan v. Secretary, Establishment Division etc. (Appeal No. .163 (R) 1986) wherein the same Service Tribunal had allowed move?-over from BPS‑18 to BPS‑19 to the appellant therein who had earned five average reports

7. Learned counsel for the respondents frankly states that he did not dispute the above referred citation's of the Hon'ble Supreme Court and also agreed that the instructions of the Finance Division cannot supersede the dictum of the Apex Court and in our view the dictum laid down by the Apex Court becomes rule under Article 189 of the Constitution.

8. Pursuant to the above discussion, we accept this appeal, set aside the impugned order and the prayer of the appellant for move‑over to BPS‑18 w.e.f. 1‑12‑1997 is allowed. 9 No order as to costs. Parties be informed. H.B.T./344/FST. ???????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.